Courtesy of James R. Touchstone, Esq.
In Moser v. Las Vegas Metro. Police Dept., the Ninth Circuit Court of Appeals held that a federal District Court did not adequately address the objective meaning of a police officer’s Facebook comment in its analysis under a United States Supreme Court test to weigh the officer’s First Amendment right against the government’s interest in workforce discipline. The Court of Appeals found that the District Court erred in granting summary judgment for the public employer.
In 2000, Charles Moser, a former Navy SEAL, joined the Las Vegas Metropolitan Police Department (“Department”), and became a member of the SWAT team in 2006. Moser served as the Assistant Team Leader of his SWAT unit and acted as a sniper.
In 2015, someone shot a Department police officer. After seeing news of the shooting suspect’s capture, Moser — while off-duty at home — commented in December 2015 on a friend’s Facebook post linking an article about the shooting by saying that it was a “shame” that the suspect “didn’t have a few holes in him.”
An internal investigation commenced after an anonymous tipster alerted the Department’s internal affairs to Moser’s Facebook comment. During his interview with investigators, Moser admitted that his comment was inappropriate, but that he intended to express his frustration that the suspect had “basically ambushed one of our officers” and that “the officer didn’t have a chance to defend himself.” He stated that he had removed his comment by the time of the interview.
Captain Devin Ballard and Deputy Chief Patrick Neville found that Moser’s Facebook comment demonstrated that he had become “a little callous to killing.” They transferred Moser out of SWAT and put him back on patrol with a pay decrease. Moser’s supervisors testified that snipers were held to a higher standard because they worked in difficult and stressful situations. Internal affairs also determined that Moser’s comment violated the Department’s social media policy and found that his Facebook page had information identifying him as a Department sniper. The Labor Management Board denied Moser’s subsequent grievance report and upheld the transfer.
Moser sued the Department, Deputy Chief Neville, and Captain Ballard for First Amendment retaliation, seeking damages under 42 U.S.C. section 1983 and injunctive relief. He contended that his Facebook comment suggested only that the police officer who had been shot should have fired defensive shots, and alleged that his disciplinary transfer was unconstitutional retaliation for his protected speech. The District Court, however, construed Moser’s Facebook comment as advocating unlawful violence, and ruled that the government’s interest in employee discipline outweighed Moser’s First Amendment right under the balancing test for speech by government employees, set forth in Pickering v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563 (1968). The District Court granted summary judgment for the Department. Moser appealed.
The Ninth Circuit Court of Appeals explained that the United States Supreme Court, in Pickering, established a framework to balance the free speech rights of government employees with the government’s interest in avoiding disruption and maintaining workforce discipline. Under the Pickering framework, the plaintiff first must establish that “(1) he spoke on a matter of public concern; (2) he spoke as a private citizen rather than a public employee; and (3) the relevant speech was a substantial or motivating factor in the adverse employment action.” Barone v. City of Springfield, Or., 902 F.3d 1091, 1098 (9th Cir. 2018).
If the plaintiff establishes this prima facie case, the burden then shifts to the government to show “that (4) it had an adequate justification for treating [its employee] differently than other members of the general public; or (5) it would have taken the adverse employment action even absent the protected speech.” Id. If the government does not meet its burden, then the First Amendment protects the plaintiff’s speech as a matter of law.
The Ninth Circuit remarked that while the Pickering balancing test presents a question of law for the court to decide, the test may still implicate factual disputes that preclude the court from resolving the test at the summary-judgment stage. See Eng v. Cooley, 552 F.3d 1062, 1071-72 (9th Cir. 2009) (“Although the Pickering balancing inquiry is ultimately a legal question . . . its resolution often entails underlying factual disputes. Thus[,] we must . . . assume any underlying disputes will be resolved in favor of the [nonmovant].”).
The Court of Appeals first determined that Moser’s speech addressed an issue of public concern under the Pickering framework, that Moser spoke as a private citizen, not a public employee, and that he was transferred with reduced pay (i.e., an adverse employment action) because of his speech. As Moser had established a prima facie case based on the first three components of the Pickering test, the Court then considered whether the Department showed that it had an adequate justification for treating Moser differently than other members of the general public.
The Court observed that the Pickering balancing test recognizes that a government employer has “broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.” Eng, 552 F.3d at 1071 (quotation marks and citation omitted). Even though the government generally cannot consider the content of the speech under the First Amendment, the Ninth Circuit noted that courts have carved a narrow exception for speech by government employees. In the limited context of the Pickering balancing test, courts may consider the content of that speech to determine how much weight to give the government employee’s First Amendment interests. Courts have thus implicitly applied a sliding scale in which the “state’s burden in justifying a particular discharge [or adverse employment action] varies depending upon the nature of the employee’s expression.”
The Ninth Circuit reversed the District Court’s summary judgment in the Department’s favor and remanded. The Court of Appeals held that the District Court erred in granting summary judgment for the government because there was a factual dispute about the objective meaning of Moser’s comment: was it a hyperbolic political statement lamenting police officers being struck down in the line of duty, or, as the Department interpreted, a call for unlawful violence against suspects? The Ninth Circuit stated that another factual dispute existed over whether Moser’s comment would have likely caused disruption in the police department. The Ninth Circuit declared that these factual disputes had to be resolved before the District Court could weigh the competing considerations of Moser’s First Amendment rights against the government interest in workforce discipline under the Pickering balancing test.
Judge Berzon dissented, stating that Moser waived any argument about the meaning of his Facebook comment. Because the Department’s interpretation of Moser’s statement was by far more reasonable than Moser’s proffered alternative, Judge Berzon would affirm the District Court’s judgment.
HOW THIS AFFECTS YOUR AGENCY
The Ninth Circuit warned of the potential dangers of employee engagement in social media, observing that “social media can…tempt people to impulsively make inflammatory comments that they later regret. And even worse for them, employers often react by firing or punishing them for their ill-advised remarks.” Moreover, “we…live in a time when a careless comment can ruin reputations and crater careers that have been built over a lifetime because of the demand for swift justice, especially on social media.”
As the Court further put it, “our society is in a self-reflective moment about excessive force and abuse of power by those who have taken an oath to protect all citizens equally and uphold the Constitution.” In this environment, comments by a present or prospective public employee that do or could reflect poorly on the agencies that hire them are hazards that should be avoided. Comments that appear to advocate excessive force, violence or racism, among other evils, can have broad-reaching repercussions on both a law enforcement officer’s career, and with respect to increasing civil liability exposure.
The First Amendment is a complex area of law. It is even more so when it involves employees in the public sector. As such, it is imperative that law enforcement management seek out advice and guidance from their legal counsel on such matters at the earliest of stages and prior to taking employment action.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400, or via email, at firstname.lastname@example.org
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 2021 U.S. App. LEXIS 738 (9th Cir. Jan. 12, 2021).
 See Connick v. Myers, 461 U.S. 138, 146-47 (1983).
 Id. at 150.